7.8 … Soldiers who are “out of combat” and civilians are to be treated in the same manner and cannot be made the object of attack …

…

8.40 The LOAC forbids the killing or wounding of an enemy who … is … hors de combat …

…

13.26 [The 1977 Additional Protocol I] extends the definition of grave breaches to include the following … acts when committed wilfully, in violation of the relevant provisions of the protocol, and causing death or serious injury to body or health:

…

• making a person the object of attack in the knowledge that they are hors de combat.

…

13.29 Provisions of the Hague Regulations 1907 are now recognised as part of customary law. Those regulations provide that the following acts are “especially forbidden”:

…

• to kill or wound an enemy who, having laid down their arms, or having no longer means of defence, has surrendered at discretion.

Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, §§ 7.8, 8.40, 13.26 and 13.29; see also § 4.30.

The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).

Australia’s ICC (Consequential Amendments) Act (2002) incorporates in the Criminal Code the war crimes defined in the 1998 ICC Statute, including “killing or injuring a person who is hors de combat” in international armed conflicts.

Military members who abandon a sinking ship should not be attacked unless they show hostile intent or are armed and so close to shore as to be capable of completing their military mission. If their conduct suggests a desire to surrender, this must be accepted.

Protected from the moment of their surrender or capture, PW [prisoners of war] and PW camps must not be made the object of attack …

…

An enemy who indicates a desire to surrender should not be attacked …

…

Combatants become protected when incapacitated, sick, wounded or shipwrecked to the extent that they are incapable of fighting.

The following examples constitute grave breaches or serious war crimes likely to warrant institution of criminal proceedings: … making PW [prisoners of war] or the sick and wounded the object of attack; … denying an enemy the right to surrender.

Combatants who are unable to continue hostile action and refrain from attempting to do so must be treated in the same fashion as noncombatants. Prisoners of war, military personnel who are surrendering or attempting to surrender, and those who are wounded or sick must not be attacked. The basic principle is that any person who is hors de combat, whether by choice or circumstance, is entitled to be treated as a noncombatant provided they refrain from any further participation in hostilities.

… A person is hors de combat if that person:

a. is under the control of an enemy;

b. clearly expresses an intention to surrender, or has been rendered unconscious, or is otherwise incapacitated; and

c. abstains from any hostile act and does not attempt to escape.

Australia, Defence Force Manual, 1994, §§ 518 and 707; see also §§ 519 and 836 (prohibition to kill or wound an enemy who surrenders in air warfare) and § 839 (prohibition to fire upon shipwrecked personnel in air warfare).

The manual also states:

The following examples constitute grave breaches or serious war crimes likely to warrant institution of criminal proceedings: … making PW [prisoners of war] or the sick and wounded the object of attack; … denying an enemy the right to surrender.

PW [prisoners of war], military personnel who are surrendering or attempting to surrender, and those who are wounded or sick must not be attacked. The basic principle is that any combatant who is hors de combat, whether by choice or circumstance, is entitled to be treated as a PW provided they refrain from any further participation in hostilities.

Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, § 5.19; see also §§ 5.20 and 10.1.

In its chapter on “Land Operations”, the manual states:

7.8 Those who do not participate in hostilities must not be the direct object of an attack. Soldiers who are “out of combat.” and civilians are to be treated in the same manner and cannot be made the object of attack. A person is hors de combat if that person:

• is under the control of an enemy;

• clearly expresses an intention to surrender; or

• has been rendered unconscious, or is otherwise incapacitated by wounds or sickness, and therefore incapable of defending himself.

Provided that person abstains from any hostile act and does not attempt to escape.

7.9 Other persons who are not taking a direct part in hostilities are also considered to be out of combat. Those persons include medical personnel, chaplains and any person parachuting from an aircraft in distress.

Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, §§ 7.8–7.9.

In its chapter on “Air Operations”, the manual states:

8.40 … Surrenders in air combat are rarely offered. Nevertheless, actions or signals that suggest surrender should be respected. The surrendered aircraft should then be escorted to a suitable landing place.

8.41 Although relatively rare, surrenders by defecting enemy aircrew of military aircraft do offer valuable intelligence and psychological opportunities, and should be encouraged.

8.42 … If an aircraft in distress is clearly hors de combat from the information known to the attacking force at the time, then its destruction offers no military advantage, and the attack should be broken off to permit possible evacuation by crew or passengers. If the aircraft is a support or civil aircraft it is particularly important that this rule be observed.

8.43 Aircraft may not open fire on any personnel who have indicated an intention to surrender. This applies to ships as well as land forces. Additionally, aircraft may not fire upon shipwrecked personnel, including those who may have parachuted into the sea or otherwise come from downed aircraft, so long as the personnel have not been picked up. These rules do not alter the fact that any attempt by the enemy to recover downed crew may be opposed.

…

8.53 If the crew of a disabled aircraft … [are] in a raft or similar craft at sea after parachuting, they are to be treated as if shipwrecked and may not be attacked.

Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, §§ 8.40–8.43. and 8.53.

In its chapter on “Compliance”, the manual states:

13.26 G. P. I [1977 Additional Protocol I] extends the definition of grave breaches to include the following:

…

• making a person the object of attack in the knowledge that they are hors de combat.

…

13.29 Provisions of the Hague Regulations 1907 are now recognised as part of customary law. Those regulations provide that the following acts are “especially forbidden”:

…

• to kill or wound an enemy who, having laid down their arms, or having no longer means of defence, has surrendered at discretion.

Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, §§ 13.26 and 13.29.

The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).

In a speech at the Stockholm International Peace Research Institute in 1995, the Australian Minister of Foreign Affairs referred to the UNTAC Rules of Engagement, which specifies that “attacks on soldiers who have laid down their arms” are a criminal act.

Australia, Minister of Foreign Affairs, Keynote Address entitled “The Use of Force in Peace Operations”, SIPRI and Australian Department of Foreign Affairs and Trade Seminar, Stockholm, 10 April 1995, cited in Sarah Roberts (ed.), Australian Practice in International Law 1995, reprinted in Australian Yearbook of International Law, 1996, Vol. 17, p. 769.